Same-Sex Parents Who Separate: Who gets the Children?

Despite the recent stalemate between the Coalition federal government and the Opposition in the controversial Same Sex Marriage debate, Australian governments have previously enacted significant legal reforms that have recognised the increasingly prominent roles of gay people in traditional family structures.

Over the years, the Australian government introduced reforms aiming to remove discrimination against same-sex couples and providing same-sex couples the same entitlements as heterosexual de-facto couples.

The reforms have emphasised the importance of the roles of both parents in the welfare of the child.

Effectively this means when same-sex parents separate, the biological parent does not have an advantage over non-biological parents in seeking parenting orders.

As you will see below, this is because the Family Court regards the best interest of the child as the main consideration when deciding on orders.

Recognition of Same-Sex Couples and Parents

In 2008, the Australian Human Rights Commission’s report Same-Sex: Same Entitlements1 published their findings of laws which discriminate against children of same-sex couples and was in breach of the Convention on the Right of the Child.

The laws failed to protect the best interests of the child in work-related and financial entitlements. As a response, over 85 pieces of legislation were amended by the Same-Sex relationships (Equal Treatment in Commonwealth Laws – General Law reform) Act 2008 (Cth).2

Same-sex relationships are now included in the definitions of ‘de-facto partner,’ ‘child,’ ‘parent,’ ‘couple,’ and ‘family.’

In addition to the federal amendments, major changes in state laws further recognise same-sex relationships and their parental rights. For example in NSW, Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 (NSW) granted equal parenting rights for females partners of mothers, and both are listed as mothers on the child’s birth certificate.3

Most children born or adopted by same-sex couples are now legally recognised as the children of both same-sex parents for the purposes of the family law and child support. This includes:

Children born through assisted or artificial conception to lesbian couples;

Children adopted by same-sex couples;

Children born under certain non-commercial surrogacy arrangements.

Now recognised as de-facto parents, same-sex parents can apply to the Court for parenting orders in their own right as a parent, as opposed to proving that they were a person concerned with the care, welfare, or development of the child. 4

Will the biological parent have an advantage in Court over the non-biological parent?

A major issue that concerns same-sex parents in dispute is whether the biological parent has an advantage over the non-biological parent, assuming the child is not adopted.

The Family Court has stated on numerous occasions that there is no such presumption in favour of a biological parent. 5

Although parenthood is an important factor especially in relation to particular provisions that applies to parents only, there is no hierarchy of preference prescribed under the Family Law Act.

In particular, section 65C does not prescribe a hierarchy to favour the biological parent in parenting orders. 6.

There is no preference for the biological parent mainly because the Court looks at the child’s best interests as a paramount consideration rather than the circumstances of the child’s conception and the gender of the child’s parents. 7

This is consistent with the intentions of the amendments of the Family Law Act in 2006 8 which put a greater emphasis on the role of both parents and their responsibilities for the child.

The Full Court, having examined the Explanatory Memorandum to the amending legislation, said there was no suggestion of particular weighting or order to be prescribed. 9

Not only does this reinforce that there is no advantage to the biological parent, but it highlights a more flexible approach and greater recognition of ‘new’ forms of family, including families with same-sex parents. 10

In the case of Aldridge v Keaton, 11, the Full Court of the Family Court considered when it is appropriate or is not appropriate for a person with non-biological ties to a child to have a parenting order made in their favour.

The biological mother argued that because she had sole parental responsibility, this meant that no order for the child to spend time or communicate with the non-biological parent was available.12

The Court dismissed this argument and highlighted that whilst there is an emphasis on parents in the Family Law Act, it is important that each case must ultimately be decided on its own particular facts, with the best interests of the child as the paramount consideration.13(See below for details on what are the best interests of the child.)

There are many factors to which the Court can take into account and it all depends on each individual case. For example, in discussing the best interests of the child in Lusito v Lusito14, the Court took into account the non-biological parent’s role as primary carer of their child as one consideration when making an order for sole parental responsibility in favour of the non-biological parent.

Although there is no presumption in favour of the biological parent for parenting orders, it has been noted by the Court that there may be a need for further legislative amendments to clarify the non-biological person’s status as a parent. 15

The Best Interests of the Child

Since 2006, provisions in the Family law Act governing ‘child custody’ have been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). 16

As briefly mentioned above, the law now focuses more on responsibilities and the child’s interests rather than ‘child custody’ and ‘parental rights’ and ‘parental control.’ In other words, it is not a matter of who gets the child; rather it is a question of what is best for the child.

The amendments emphasised the 2 types of considerations – primary and additional considerations – which must be taken into account when making parenting orders in the child’s best interest. The considerations are examined weighted and applied in each individual case. 17

Both same-sex parents can apply to the Family Court or to the Federal Circuit Court of Australia for a parenting order.18

Under section 64B of the Family Law Act, parenting orders may deal with issues on whom the child is to live with, the time spent with person(s), allocation of parental responsibility, maintenance, communication and more.19

When making a parenting order, the court must consider the best interests of the child. 20

The court has emphasised this as a paramount consideration but not the sole consideration. 21

Further, as emphasised in Barnham & Geyer where the child’s best interests conflict with the parent’s rights, usually the Court will favour the best interests of the child. 22

1. Primary Considerations

First, the court will address the primary considerations. These are:

The benefit of the child of having a meaningful relationship with both parents 23

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 24

A meaningful relationship is one that is important, significant and valuable to the child. 25

Pursuant to the new provision under section 60CC(2A) of the Family Law Act, 27, if the Court finds the first primary consideration of having a meaningful relationship is inconsistent with protecting the child from harm, then greater weight is given to the second primary consideration to protect the child from such harm.

2. Additional considerations

Second, the Court will consider 13 other additional considerations outlined under section 60CC(3) of the Family Law Act. 28 In summary they include:

The child’s wishes

The nature of the relationship between the child and the parents

The financial ability of the parent to care for the child

The ability of the parent to provide for intellectual and emotional needs of the child

The level of connection between the parents.

Presumption of Equal and Shared Parental Responsibility

In addition to the above considerations and in accordance with section 61DA of the Family Law Act, 29, the Court presumes that it is the child’s best interest for the parents to have equal and shared parental responsibility for the child.

However, the presumption will not apply if there are reasonable grounds to believe that there is family violence or that the parents are engaged in abuse of the child or another child. 30

The presumption can be rebutted if the court is satisfied that it would be contrary to the child’s best interests for equal shared parental responsibility for the child. 31

For those seeking an order for equal shared parental responsibility, pursuant to section 65DAA, 32, the court will consider whether equal time or substantial and significant time is in the child’s best interest. If so, the court will then consider whether equal time is ‘reasonably practicable.’

This is a two-step process as highlighted in the High Court Case of MRR v G, 33 and it is only when both questions are answered in the affirmative, then the court will make such an order.

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I am undertaking my third year of a Bachelor of Combined Arts/ Law at the University of New South Wales with a major in philosophy and minor in sociology. I am interested in pursuing a legal career particularly in Family Law or Criminal Law, especially aiming to improve and ensure equal access to justice by addressing the issues in these areas of law and difficulties faced by the people.